[EL] The Federalist Papers and Anonymity

[Bill Maurer]

I should note that Rick's suggestion to dramatically raise the level at which disclosure is required considerably lessens the degree of the First Amendment problem.  However, the disclosure standards for many states are ridiculously low ($25 in Washington) and thus provide no useful information except a one-stop-shopping list for people with bad motives.  I did not mean to suggest that Rick falls into the "disclose everything all the time" crowd and he and Dan Lowenstein have tried to put forward reasonable proposals to respond to what they see as a significant problem.  However, their approach is not the prevailing view in legislative or enforcement bodies and, until it is and we stop requiring people to disclose their name, address, and employer as a precondition for having contributed a box of doughnuts and a carton of coffee from Starbucks for a political meeting, many will consider the traditional arguments for disclosure unpersuasive.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Bill Maurer
Sent: Monday, June 04, 2012 10:54 AM
To: Rick Hasen
Cc: JBoppjr at aol.com; law-election at uci.edu
Subject: Re: [EL] The Federalist Papers and Anonymity

I respectfully disagree with your first point.  The Socialist Workers were able to show it only because they had been subject to harassment for years.  Again, the only way to get the proof of the need for anonymity is to experience harassment, and rational people will look at that standard and say, "no thanks.  That's not for me."

Moreover, new groups speaking about new issues will not be able to compile the record that the SWP did.  Who can predict what issues will be contentious in the future?  Four years ago, I would have not guessed that there would be people protesting in the streets for months at a time about banks.

And as recent events have demonstrated, there are people out there who are unhinged from reality and who fixate on even the most mundane issues or disputes.  I think most Americans have a reasonable concern that a government database of political activity that contains their name, address, and often their employer will make it easier for such people to locate and target them.  I also know people who shred their mail because it contains their name and address and don't want ID scammers to get their hands on that information.  Do you think that having that same information available to everyone on Earth with access to a computer and the Internet makes it more or less likely they will participate in politics?

So, the fact that the SWP can speak anonymously and pretty much no one else can does almost nothing to provide protection or assuage the concerns Americans have about providing their information as a condition of engaging in politics.  As a result, these people remain silent because of a government policy.  This violates the First Amendment.

Bill

From: Rick Hasen [mailto:rhasen at law.uci.edu]<mailto:[mailto:rhasen at law.uci.edu]>
Sent: Monday, June 04, 2012 10:33 AM
To: Bill Maurer
Cc: JBoppjr at aol.com<mailto:JBoppjr at aol.com>; law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] The Federalist Papers and Anonymity

The Socialist Workers were able to show it.  Given how rare harassment is for people who do more than make campaign contributions the proof issue is not a big problem.

In any case, I'd stress that I favor raising disclosure thresholds dramatically (for informational privacy reasons, not out of fear of harassment).  And the universe of people making $10K plus contributions who would face harassment in our current society is mercifully very small.


On 6/4/12 10:28 AM, Bill Maurer wrote:
Sorry I'm late to the game on this, but doesn't Rick's position create a significant proof problem?  How does a speaker know that their speech will create severe retaliation?  I've asked this before, but how does one show that there's a reasonable probability that someone will burn your house down if you take a public stand on an issue until your house gets burned down?  Then the judge could say, "you know, you were right-your information should have been kept private.  By the way, you're getting soot all over the courtroom."

Thus, in reality, this standard is unworkable-you're either too early to get protection and so you don't speak or you're too late and the harm is done.  Welcome aboard the "Kobayashi Maru."  The only logical choice is to not play the game as it is currently constituted, thus creating a significant harm to the speaker, political discourse, and leaving the political playing field to only those who are rich enough or powerful enough to not care about potential blowback.  I think a better standard would be that a speaker's anonymity should be the default position and that the government should have to burden to prove (i) why the speaker's information should be released to the public, and (ii) that the release of the information is unlikely to cause harassment and coercion.

Bill

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Friday, June 01, 2012 8:52 AM
To: JBoppjr at aol.com<mailto:JBoppjr at aol.com>
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] The Federalist Papers and Anonymity

If you think that I want people to suffer severe retaliation for their political beliefs you have not read my work closely.

I have said repeatedly that when there is credible evidence people will face severe retaliation, then they should be exempt from disclosure.  In recent cases involving gay marriage ballot measures in which you have been involved, two federal district courts evaluated these claims in detail and found no credible evidence of harassment of people who merely gave campaign contributions or collected signatures for a ballot measure. Doe v. Reed, 823 F.Supp.2d 1195 (W.D.Wash. Oct. 17, 2011); ProtectMarriage.com v. Bowen, No. 2:09-CV-00058-MCE-DA, ___ F.Supp.2d ___, 2011 WL 5507204 (E.D. Cal. Nov. 4, 2011). See Richard L. Hasen, Chill Out: A Qualified Defense of Campaign Finance Disclosure in the Internet Era, Journal of Law and Politics (forthcoming 2012), draft available at: http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=1948313.


On 6/1/12 8:44 AM, JBoppjr at aol.com<mailto:JBoppjr at aol.com> wrote:
    Regarding: "The Federalist Papers were written in 1788, well after the American Revolution victory over King George III's government."  Yes, I knew that, but I liked the rhetorical flourish!

    In any event, my point was that Rick might want them strung up for speaking out against the Articles of Confederation, since his point is that anonymous speech is wrong since people don't get to punish them for it.

    And I believe that nearly all of the signers of the Declaration of Independence did indeed suffer severe retaliation for doing so, which seems to be a result that might please Rick.

Jim Bopp

In a message dated 6/1/2012 10:58:43 A.M. Eastern Daylight Time, mmcdon at gmu.edu<mailto:mmcdon at gmu.edu> writes:
The Federalist Papers were written in 1788, well after the American Revolution victory over King George III's government. The phrase "sign your John Hancock" is associated with the non-anonymous speech of signing the Declaration of Independence, which was more likely to result in retaliation by King George III.

The Federalists were arguing for a stronger government than what existed under the failed Articles of Confederation, America's first constitutional government, a weak government incapable of performing its necessary functions. So, the Federalists were in some measure proponents of greater federal government power, hence their name, Federalists. It was the Anti-Federalists who were those that were more distrustful of federal power and favored more power in the hands of the states and the people. Our original constitution did not have a First Amendment protecting free speech. The Bill of Rights was adopted in conciliation to the Anti-Federalists. The authors of the Federalists Papers did not believe that the provisions in what would become the Bill of Rights were necessary, including the First Amendment Freedom of Speech.

The authors of the Federalists Papers were not in fear of reprisal for authoring the essays. The three were well known for their support of the proposed constitution; Madison was its author. The authors of the Federalist Papers used anonymity so that Anti-Federalists could not make a connection to the personal interests of the authors when rebutting the essays. Still, at the time, many people correctly guessed who the authors were. Ironically, in light of Jim's impassioned defense of anonymity, we might have had a federal government with weaker powers if the authors had not written anonymously under Publius.

There is a cogent argument that one can draw from the Federalist Papers example about the value of anonymous speech to protect against ad hominem arguments, but there is no basis to argue that the three authors feared retribution from King George III.

============
Dr. Michael P. McDonald
Associate Professor, George Mason University
Non-Resident Senior Fellow, Brookings Institution

                             Mailing address:
(o) 703-993-4191             George Mason University
(f) 703-993-1399             Dept. of Public and International Affairs
mmcdon at gmu.edu<mailto:mmcdon at gmu.edu>               4400 University Drive - 3F4
http://elections.gmu.edu     Fairfax, VA 22030-4444

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com<mailto:JBoppjr at aol.com>
Sent: Friday, June 01, 2012 9:38 AM
To: rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>; law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] ELB News and Commentary 6/1/12

    Things have certainly changed.  The First Amendment contemplates that the citizens are free to participate in their government and that the government is thereby to be held accountable to the citizens.

    Now, it is the government holding the citizens accountable for participating in their government, as Rick says: "Those with power want to wield it without being accountable for their actions." He wants speech only if there are consequences to the speaker. I guess he wants the Founders strung up for publishing the Federalist and Anti-Federalist anonymously.  Well at least King George III certainly did. And how about Mrs McIntyre, who not even Justice Stevens wanted to be punished by the school board.

    As this debate goes on, at least we now know plainly what the "reformers" have in mind for those who dare to speak. Nothing about voter information. No bogus claim that there will be no retaliation.  But a celebration of retaliation. And then what a great democracy we would have!

  Only the rich and powerful, whose allies hold the levers of government power, would dare speak. It would be helpful too if your allies control the media. Humm, am I describing current America where liberals hold sway?  Is that why some liberals are all fired up to bring it on!  Is this their last desperate attempt to hold power -- threaten punishment of their "enemies" for daring to speak out?

    At least now, all the false facade has been stripped away and the brave new world they contemplate has been revealed to all.

    Actually, it is a brave old world -- see Gangs of New York if you want to see a window to our future democracy.  Jim Bopp

In a message dated 6/1/2012 2:21:47 A.M. Eastern Daylight Time, rhasen at law.uci.edu<mailto:rhasen at law.uci.edu> writes:
"Citizens: Speech, no consequences"
Posted on May 31, 2012 11:20 pm by Rick Hasen
I have just written this oped for Politico.  It begins:
You've got to feel bad for the rich and powerful in America. The U.S. Chamber of Commerce and a variety of big business groups say if Congress goes back to letting the American people know who is behind campaign attack ads, businesses will face the "palpable" threat of "retaliation" and "reprisals."
Former Federal Election Commission Chairman Bradley Smith warns in The Wall Street Journal that boycotts based on political beliefs - made possible by the public disclosure of campaign finance data - "endanger the very commerce that enriches us all." Even the chief justice of the United States, John Roberts, apparently is being "intimidated" (Kathleen Parker), "pressured" (George Will) and "threatened" (Rick Garnett) by that most powerful force in America (law professor and New Republic legal editor) Jeffrey Rosen.
On the right these days, the rhetoric is all about a liberal siege. Despite Republicans' majority in the House, its filibuster power in the Senate, a sympathetic Supreme Court and the great power of business groups - the language of threats is pervasive. But look beyond the rhetoric and you can see what's really going on: Those with power want to wield it without being accountable for their actions.


Posted in campaign finance, Supreme Court | Comments Off
"FEC Deadlocks on Candidate's Request To Rule on His Plumbing Company's Ads"
Posted on May 31, 2012 11:16 pm by Rick Hasen
Bloomberg BNA: "The Federal Election Commission deadlocked late May 30 on an advisory opinion request asking whether FEC reporting and disclaimer rules regarding "electioneering communications" apply to ads for a congressional candidate's plumbing company....The deadlock over the Mullin AO indicated that the FEC may have trouble providing guidance to the regulated political community following the recent court actions that beefed up reporting requirements for electioneering communications."

Posted in campaign finance | Comments Off
"The Corporate Disclosure Ruse"
Posted on May 31, 2012 11:14 pm by Rick Hasen
Kimberly Strassel takes on Bruce Free's Center for Political Accountability. This is apparently the second attack in two days and the fifth in five months.  Sensing a pattern here?

Posted in campaign finance | Comments Off
Will Tuesday's Recall Results in Wisconsin Be an "Omen" for President Obama in November?
Posted on May 31, 2012 11:12 pm by Rick Hasen
NYT explores.

Posted in campaigns, recall elections | Comments Off
"Runoff Draws Big Money and Heated Words"
Posted on May 31, 2012 11:08 pm by Rick Hasen
NYT reports on Dewhurst-Cruz in Texas.

Posted in campaign finance, campaigns | Comments Off
"U.S. judge blocks key parts of Fla. law regulating voter registration"
Posted on May 31, 2012 11:05 pm by Rick Hasen
WaPo reports.  MORE from NYT.

Posted in NVRA (motor voter), The Voting Wars, voter registration | Comments Off
"DOJ eyes Florida voter roll purge of non-U.S. citizens"
Posted on May 31, 2012 11:02 pm by Rick Hasen
Politico reports.

Posted in Department of Justice, voter registration, voting, Voting Rights Act | Comments Off
"Candidates use lawyers for early battles'
Posted on May 31, 2012 11:00 pm by Rick Hasen
TribLive: "Pennsylvania candidates are increasingly turning to the courts to settle election disputes - and vanquish opponents. State court administrators reported on Thursday that Commonwealth Court, which deals with election disputes involving candidates for a state office or higher, has handled a record 131 election cases this year."

Posted in campaigns | Comments Off
"Coalition challenges voter ID amendment"
Posted on May 31, 2012 10:58 pm by Rick Hasen
AP: "Four groups petitioned the Minnesota Supreme Court on Wednesday to remove from the November ballot a proposed constitutional amendment requiring voters to present photo IDs at the polls, saying the language that voters will see doesn't accurately describe the amendment."

Posted in election administration, The Voting Wars, voter id | Comments Off
"Holder's Chutzpah; Voter-ID laws are not about denying access to blacks."
Posted on May 31, 2012 10:57 pm by Rick Hasen
Thomas Sowell has written this article for National Review Online.

Posted in election administration, fraudulent fraud squad, The Voting Wars, voter id | Comments Off
WaPo on Edwards
Posted on May 31, 2012 7:45 pm by Rick Hasen
Here.

Posted in campaign finance, chicanery, John Edwards | Comments Off
NYT on Edwards Verdict
Posted on May 31, 2012 6:16 pm by Rick Hasen
Here.
MORE: Another High-Profile Failure for a Justice Dept. Watchdog

Posted in campaign finance, chicanery, John Edwards | Comments Off
"Edwards case may have little effect on campaign finance"
Posted on May 31, 2012 6:14 pm by Rick Hasen
The News and Observer reports.

Posted in campaign finance, chicanery, John Edwards | Comments Off
"Justice Department Demands Florida Stop Purging Voter Rolls"
Posted on May 31, 2012 6:10 pm by Rick Hasen
TPM: "The Justice Department sent a letter to Florida Secretary of State Ken Detzner Thursday evening demanding the state cease purging its voting rolls because the process it is using has not been cleared under the Voting Rights Act, TPM has learned."

Posted in Department of Justice, election administration, The Voting Wars, voting, Voting Rights Act | Comments Off
"Is John Edwards verdict the last straw for campaign finance?"
Posted on May 31, 2012 4:45 pm by Rick Hasen
The CS Monitor reports.

Posted in campaign finance, chicanery, John Edwards | Comments Off
Both Sides Seem to Claim Victory in Florida Voter Registration Case
Posted on May 31, 2012 4:40 pm by Rick Hasen
See this AP report.  But the fact that the state may appeal is a good sign that this was more of a win for plaintiffs.

Posted in election administration, The Voting Wars | Comments Off
Gerstein on the Edwards Case
Posted on May 31, 2012 4:38 pm by Rick Hasen
Here.

Posted in campaign finance, chicanery, John Edwards | Comments Off
WSJ on Edwards Case
Posted on May 31, 2012 4:35 pm by Rick Hasen
Here.

Posted in campaign finance, chicanery, John Edwards | Comments Off
"John Edwards' Might've Walked But Trial Still A Warning For Politicians"
Posted on May 31, 2012 4:33 pm by Rick Hasen
NPR reports.

Posted in campaign finance, chicanery, John Edwards | Comments Off
"A Cad Gets His Due; The world knows that John Edwards is loathsome. That's enough."
Posted on May 31, 2012 3:34 pm by Rick Hasen
Must-read Emily Bazelon on John Edwards.

Posted in campaign finance, chicanery, John Edwards | Comments Off
"'Bad Kemo' riles the Sunshine State: Pre-emptive vote tampering threatens majority rule"
Posted on May 31, 2012 3:17 pm by Rick Hasen
Hugh Carter Donohue has written this oped for the Tallahassee News.

Posted in election administration, The Voting Wars | Comments Off
"Buddy Roemer quits 2012 race"
Posted on May 31, 2012 3:16 pm by Rick Hasen
Politico reports.
The underreported story so far of the presidential campaign: (Where) might Gary Johnson make a difference?


Posted in ballot access, campaigns, third parties | Comments Off
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Pre-order The Voting Wars: http://amzn.to/y22ZTv


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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Pre-order The Voting Wars: http://amzn.to/y22ZTv

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Pre-order The Voting Wars: http://amzn.to/y22ZTv
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